Divorce in England
In England the law of divorce, originally based on the canon law of Rome, underwent some, though little, permanent change at the Reformation, but was profoundly modified by the exercise of the power of the state through legislation. From the canon law was derived the principle that divorce could legally take place only by sentence of the court, and never at the will of the parties. Complete divorce has never been governed by any other principle than this; and in so far as an incomplete divorce has become practicable at the will of the parties, it has been by the intervention of civil tribunals and contrary to the law of the ecclesiastical courts. Those courts adopted as ground for divorce a mensa et thoro the main grounds allowed by Roman canon law, adultery and cruelty (Ayliffe, 22; Co. Lit. 102; 1 Salk. 162; Godolphin Abridg. 495). The causes of heresy and of entering into religion, if ever they were recognized in England, ceased to exist at the Reformation.
The principles upon which the English ecclesiastical courts proceeded in divorce a mensa et thoro are those which are still in force, and which (with some modification by statutory enactment) have been administered by judicial tribunals down to the present day. The courts by which the ecclesiastical law, and therefore the law of divorce, was administered were, until 1857, the courts of the various dioceses, including that of the archbishop of Canterbury, known as the Court of Arches, and that of the archbishop of York, known as the Consistory Court of York; but by statute a suitor was prevented from taking proceedings in any court except that determined by the residence of the person against whom proceedings were taken (23 Hen. VIII. c. 9). From these courts an appeal lay to delegates appointed in each case by the crown, until the establishment of the judicial committee of the privy council in 1836, when the appeal was given to the crown as advised by that body.
The proof of adultery (to which Isidore in his Book of Etymologies gives the fanciful derivation of “ad alterius thorum”) was not by the canon law as received in England restricted by the operation of arbitrary rules. It was never, for example, required, as by the law of Mahomet, that the act should have been actually seen by competent witnesses, nor even that the case should be based on any particular kind of proof. It was recognized that the nature of the offence almost inevitably precluded direct evidence. One rule, however, appears to have commended itself to the framers of the canon law as too general in its application not to be regarded as a principle. The mere confession of the parties was not regarded as a safe ground of conviction; and this rule was formulated by a decretal epistle of Pope Celestine III., and, following it, by the 105th of the Canons of 1604. This rule has now been abrogated; and no doubt it is wiser not to fetter the discretion of the tribunal charged with the responsibility of deciding particular cases, but experience of divorce proceedings tends to confirm the belief that this rule of the canon law was founded on an accurate appreciation of human nature.
Although, therefore, with the above exception, no strict rules of the evidence necessary to establish adultery have ever been established in the English courts, experience has indicated, and in former days judges of the ecclesiastical courts often expressed, the lines upon which such proof may be expected to proceed. It is necessary and sufficient, in general, to prove two things—first the guilty affection towards each other of the persons accused, and, secondly, an opportunity or opportunities of which, if so minded, their passion may have been gratified. It is obvious that any strong proof on either of these points renders strict proof on the other less needful; but when proof on both is afforded, the common sense of a tribunal, acting with a knowledge of human nature, may be trusted to draw the inevitable conclusion.
The definition of cruelty accepted by the ecclesiastical courts as that of the canon law is the same as that which prevails at the present time; and the view of the law taken by the House of Lords in Russell v. Russell (1897 App. Cas. 395) was expressly based on the view of cruelty taken by the authorities of the ecclesiastical law. The best definition by older English writers is probably to be found in Clarke’s Praxis (p. 144): “Si maritus fuerit erga uxorem crudelis et ferax ac mortem comminatus et machinatus fuerit, vel eam inhumaniter verbis et verberibus tractaverit, et aliquando venenum loco potus paraverit vel aliquod simile commiserit, propter quod sine periculo vitae cum marito cohabitare aut obsequia conjugalia impendere non audeat . . . consimili etiam causa competit viro contra mulierem.” Lord Stowell, probably the greatest master of the civil and canon law who ever sat in an English court of justice, has in one of his most famous judgments (Evans v. Evans, 1790, 1 Hagg. Consist. 35) echoed the above language in words often quoted, which have constituted the standard exposition of the law to the present day. “In the older cases,” he said, “of this sort which I have had the opportunity of looking into, I have observed that the danger of life, limb or health is usually insisted as the ground upon which the court has proceeded to a separation. This doctrine has been repeatedly applied by the court in the cases which have been cited. The court has never been driven off this ground. It has always been jealous of the inconvenience of departing from it, and I have heard no one case cited in which the court has granted a divorce without proof given of a reasonable apprehension of bodily hurt. I say an apprehension, because assuredly the court is not to wait till the hurt is actually done; but the apprehension must be reasonable: it must not be an apprehension arising from an exquisite and diseased sensibility of mind. Petty vexations applied to such a constitution of mind may certainly in time wear out the animal machine, but still they are not cases of legal relief; people must relieve themselves as well as they can by prudent resistance, by calling in the succours of religion and the consolation of friends; but the aid of courts is not to be resorted to in such cases with any effect.” The risk of personal danger in cohabitation constituted, therefore, the foundation of legal cruelty. But this does not exclude such conduct as a course of persistent ill-treatment, though not amounting to personal violence, especially if such ill-treatment has in fact caused injury to health. But the person complaining must not be the author of his or her own wrong. If, accordingly, one of the spouses by his or her conduct is really the cause of the conduct complained of, recourse to the court would be had in vain, the true remedy lying in a reformation of the real cause of the disagreement.
In addition to a denial of the charge or charges, the canon law allowed three grounds of answer: (1) Compensatio criminis, a setoff of equal guilt or recrimination. This principle is no doubt derived from the Roman law and it had the effect of refusing to one guilty spouse the remedy of divorce against the other although equally guilty. It was always accepted in England, although not in other countries, such as France and Scotland, which also followed the canon or civil law. In strictness, recrimination applied to a similar offence having been committed by the party charging that offence. But a decision (1888) of the English courts shows that a wife who had committed adultery could not bring a suit against her husband for cruelty (Otway v. Otway 13 P. D. 141). (2) Condonation. If the complaining spouse has, in fact, forgiven the offence complained of, that constitutes a conditional bar to any proceedings. The main and usual evidence of such forgiveness is constituted by a renewal of marital intercourse, and it is difficult-perhaps impossible-to imagine any case in which such intercourse would not be held to establish condonation. But condonation may be proved by other acts, or by words, having regard to the circumstances of each case. Condonation is, however, always presumed to be conditional on future good behaviour, and misconduct even of a different kind revives the former offence. (3) Connivance constitutes a complete answer to any charge. Nor need the husband be the active agent of the misconduct of the wife. Indifference or neglect imputable to a corrupt intention are sufficient. It will be seen presently that modern statute law has gone further in this direction. It is to be added that the connivance need not be of the very act complained of, but may be of an act of a similar kind. A learned judge, recalling the classical anecdote of Maecenas and Galba, said, “A husband is not permitted to say non omnibus dormio.” The
